Court Delay and Law Enforcement in China
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BeschreibungQing-Yun Jiang shows that court delay is not a serious problem in the lower courts in respect to trial cases, but mainly in appeal cases and retrial cases, which require more time. The author confirms that law enforcement has been an obstacle for the development of market economy and a bottleneck of the judiciary and he concludes that judicial reform should not only deal with symptoms, but with the roots of the political and economic structure.
InhaltsverzeichnisSpecial problems of the judicial system in developing countries
Legal system and civil process in China
Functioning of the court system: duration of the courts
Critical evaluation of the functioning of the court system - restructuring the court system
Litigation costs, court budgets and access to justice
Enforcement of judgments by the courts
PortraitDr. Qing-Yun Jiang promovierte bei Prof. Dr. Hans-Bernd Schäfer am Institut für Recht und Ökonomik der Universität Hamburg. Er studierte Wirtschaftswissenschaft in Schanghai und Jura in Hamburg.
LeseprobeChapter 4 A Survey of Litigation Costs, Court Budgets and Access to Justice (S. 168-169)
The charge of various court fees has impeded the accessibility to justice. Under current administration of court fees, which are transferred to the local administrations and then reimbursed proportionately to the courts, the courts have more incentive to increase income by charging excessive fees. Meanwhile, the lack of budget autonomy leads to the interference of the local governments as well as the longer duration of the trial. To guarantee budget autonomy under current situation, it is practical to establish a two-tiered budget supply, namely, the remuneration of the judges and operational costs of the courts shall be guaranteed by budget of the state, whereas the costs for court facilities shall be borne by the locals. Under such budget allocation, the judiciary will be less dependent on the locals and the worries of the judges will be relieved.
The cost of a judicial system consists of mainly 2 parts. One is the public cost which is borne by the state in establishing the judicial system, the other is the private cost which is charged by the court such as litigation cost and lawyers fees which are borne by the parties. The functioning of the court system in a country is heavily affected by the burden of these costs. In economic terms, costs will affect the demand. The burden of the litigation cost of the parties will influence the decisions of the parties on whether or not to go to the courts for remedy under a certain constraint such as the probability of winning their case and enforcement of judgments. Additionally, delay and backlog will increase the price to the parties implicitly, consequently, people will react to this added cost by reducing their filings and not redress their grievances within the court system.
In China, lawyers do not monopolize all of the litigation ca
ses since the Civil Procedure Code allows a non-lawyer to represent the parties, consequently the parties involved depend less on the lawyers to plea their case. Besides cost considerations, non-engagement of lawyers in litigation has much to do with the fact that lawyers are not trustworthy nowadays because of bribery, lack of necessary legal training and substandard professional knowledge. If lawyers roles are only seen as mediators and middleman in bribing judges, this will only increase the additional costs of litigation rather than increasing quality legal service as expected. In the past years, the moral hazard has been a hurdle for the development of the service sector of lawyers. Furthermore, the court budgets will also affect the functioning of the court system.
The lack of financial support to the judiciary could lead to a dysfunctional judicial system. In other words, if the courts lack financial support in office facilities, highly skilled personnel and other infrastructures like vehicles, communication equipment, etc., the filing and disposition of the cases will be affected and a prompt disposition is unlikely in such a situation. In Germany, litigation costs have arisen dramatically as a result of savings policy, which shifts the fees to the litigants.
Untertitel: Civil process and economic perspective. 2006. Auflage. eBook. Sprache: Englisch. Dateigröße in MByte: 12.
Verlag: Deutscher Universitätsverlag
Erscheinungsdatum: Mai 2008
Format: pdf eBook
Kopierschutz: Adobe DRM